Prop. B fight is about constitutional rights

Jan Goldsmith

On June 5, Proposition B, a pension reform initiative, was approved by 66 percent of San Diego voters. It had been placed on the ballot as a citizen initiative after submission of some 116,000 signatures of registered voters, about 20 percent of the electorate. Four San Diego labor unions and the Public Employment Relations Board (PERB), a state agency, vowed to challenge the legality of Proposition B.

However, Proposition B is a relatively well-written measure, having been drafted by a private law firm with extensive municipal law experience. There isn’t much to challenge since the measure does not take away vested pension benefits. But that did not deter the labor unions and PERB.

Rather than attack the substance of Proposition B, they came up with a new legal theory. They argue that Proposition B is not really a citizen initiative, but is a “sham” initiative placed on the ballot by “straw men” acting for San Diego’s mayor who supported and campaigned for the measure. Because it’s a “sham” initiative, they argue, it should be treated as a city-sponsored measure that required bargaining with its labor unions before adoption.

Citizen initiatives have been around for over 100 years. Yet never before has any initiative that qualified for the ballot through petition signatures been deemed a “sham” citizen initiative. Governors (including Jerry Brown on his current tax initiative), mayors and other political leaders have regularly supported citizen initiatives and never has that support rendered those citizen initiatives “shams.”

Since 1911, the right to place citizen initiatives on the ballot through voter petitions has been a constitutional right in California reserved by the people to bypass politicians and special interests. This right is not conditioned upon the approval of those special interests and is not something to be bargained over.

Here, the mayor and two of the city’s eight council members joined with members of the community to use the initiative process to bypass the full City Council who they believed would not support this pension reform. They raised money, gathered 116,000 signatures and qualified Proposition B for the ballot. Then, they campaigned for its adoption and convinced 66 percent of the voters to support it.

In other words, they exercised their constitutional rights.

Nevertheless, PERB filed a lawsuit in February against the city and sought a court order removing Proposition B from the June ballot. PERB complained that similar citizen initiatives are “likely to be replicated elsewhere” if not stopped by San Diego courts. PERB lost.

That did not deter PERB and the labor unions. Beginning July 17, PERB conducted its own hearing on Proposition B. For the first time in history, citizens were ordered by subpoenas to testify on their participation in the electoral process to determine whether an initiative that qualified through petition signatures was a “sham.” If PERB’s hand-picked PERB hearing officer decides it was, PERB will conclude that the 116,000 “straw men citizens” who signed the petition will lose their constitutional rights. And, if the hearing officer fails to cooperate, the final say is determined by appeal to PERB’s governing board, the same board that sued the city in the first place.

Unfortunately for PERB, the hearing actually showed a legitimate citizen effort behind Proposition B that was independent of the mayor. Contrary to PERB’s accusations, the initiative was authored, drafted, developed, promoted and funded by community members associated with the San Diego Taxpayers Association and San Diego Lincoln Club, a private organization that has been around for over 30 years. There was no evidence that any of these people were controlled by the mayor. In fact, when presented with the mayor’s objection to portions of their proposal, they told the mayor they would proceed with their initiative with or without his support.

Whether PERB will voluntarily back down is only known in PERB’s Sacramento offices. If it does not, the ultimate decision will be made by the courts. Thus far, the courts have declined to stop PERB, citing its exclusive jurisdiction as a state agency and pointing out that appeals to the judiciary should come after PERB issues a formal decision.

Although it is important to emphasize that the courts have not yet decided the merits of PERB’s claims, a court has recently approved PERB’s request for an interim injunction preventing the city from implementing Proposition B. A hearing on whether to extend that injunction will be held on July 27.

It is stunning that this new legal theory has come this far. After all, constitutional rights are supposed to protect us from government and not be something that government agencies can ignore if they doubt the citizens’ sincerity. Until stopped by the courts, PERB may continue to use taxpayer money to mount this crusade to thwart the people’s will and trample on their constitutional rights. And the city of San Diego will continue to fight for the constitutional rights of our people.